On Exhaustion Of Right Of Copyright

This paper made a relatively complete discussion about the principle of exhaustion of right of copyright and emphasized on its application to cross-border trade, i.e. parallel import of copyright. The principle of exhaustion of right of copyright was created so as to solve the conflict between the enforcement of copyright and the transfer of the carrier of the copyright, whose aim was to limit the right of copyright owner to control further disposition of the copyrighted work after its first sale. The first chapter introduced the basic theories related to the principle of exhaustion of right of copyright. From the definition of copyright and its characteristics came the definition of the principle of exhaustion of right of copyright and its relationship with the characteristics of copyright. In the author's view, judging from the angle of legal theory, the basis of the principle of exhaustion of right of copyright is the balance of benefit. Copyright reflects the protection of the benefit of copyright owner, while the principle of exhaustion of right of copyright reflects the protection of free transaction of copyrighted work and the benefit of the seller and the public. Judging from the philosophical angle, the basis of the principle of exhaustion of right of copyright is the limit of rights. The principle of exhaustion of right of copyright is the border between the right of copyright owner and that of the public by which the right of copyright owner is reasonably limited. Then the author introduced the legislation of some countries including the U.S., Britain, France etc and that of E.U. involving the principle of exhaustion of right of copyright, most of which have clearly enacted the principle in the copyright law or case law. But France and Belgium was among the exceptions. The second chapter was about the scope of application of the principle of exhaustion of right of copyright. The author believed that the principle of exhaustion of right of copyright was applicable to the distribution right of copyright and the rental right of works except computer software, cinematographic works, and sound and video recordings. But the mental rights of copyright and the network transmission right of digital works cannot be applied to the principle of exhaustion of right of copyright. In the third chapter, the author made suggestion on the legislation of the principle of exhaustion of right of copyright in Chinese copyright law. Article 52 of the existing Copyright Law which provides the detailed regulation of exhaustion of right of copyright is not good enough. It is suggested that the provision of the principle of exhaustion of right of copyright be included in the section of "limit of right"and the burden of proof of exhaustion of right of copyright be borne by the copyright owner. The fourth chapter was about the parallel import of copyright. First, it discussed about the definition of parallel import, its relationship with the principle of exhaustion of right of copyright, the cause of its occurrence and its advantages and disadvantages, which were the basis of the following legislation suggestion. Second, the legislation of some countries involving parallel import of copyright was listed, some of which prohibit the parallel import while others permit it. In the case law in the U.S., there were even two cases whose verdicts ran counter to each other. In addition, most international treaties have avoided the provision of parallel import of copyright. Therefore, the legislation of parallel import of copyright shall mainly base on the benefit of that country. According to the author's opinion, China shall prohibit parallel import of copyright in its copyright law. As to the protection of copyright contract, the contract between the copyright owner and the counter party shall be fully respected. But the result and ways of remedy of breach of contract is not the same as those ofinfringement of right. Furthermore, the issue of parallel import may also be adjusted through anti-unfair competition law. But the existing Law against Unfair Competition in China shall be improved first.